The best experts giving evidence in court are those who answer the questions thoughtfully as opposed to grandstanding, a High Court judge told an online meeting of expert witnesses last week.
A senior barrister also revealed judges were becoming more critical of experts in complex personal injury cases.
“The worst expert witnesses are those who show off. They may be the world’s leading authority in any particular field… but it doesn’t necessarily make them right on this occasion,” the Expert Witness Institute’s annual conference heard from Mrs Justice McGowan.
In a session on lessons from the courts, she said the role of expert witnesses was mainly to assist the judges in understanding whether the concerns the other side had raised were genuine. “I’m looking for help, basically, for somebody to guide me in an area I don’t know much – or anything – about.”
Nigel Lickley QC, a deputy High Court judge who sits at the Old Bailey in London, agreed, observing that while some experts tried to “steal the show”, others were less talkative and “slow to come forward and express their view”.
Some were argumentative, he said, adding that “the dogmatic expert is unattractive”.
When addressing a jury in particular, expert witnesses had to remember who their target audience was. The best ones could “break the subject down into its component parts and really explain… in a way that everybody understands”.
Alexander Hutton QC, a barrister specialising in clinical negligence cases and acting for both claimants and defendants, reported judges were becoming “more and more robust in the way that they deal with experts and can be quite critical of them”.
It was vital, he said, that expert evidence followed Practice Direction 35 and was independent and unbiased. A lot of judicial criticism was that they had lost sight of that.
Also, he said, it was important not to underestimate the amount of pressure that would be put on experts to be sympathetic to the instructing side, given that they attended conferences with the solicitor, the barrister, perhaps the family and maybe doctors, all supporting the client.
He said: “There is an enormous amount of pressure there to do your best for the client and it’s very difficult to resist. But it must, if you possibly can, be resisted.
“You must try and step back and ask yourself, ‘Would I have given the same opinion if I was on the other side?’.
“The system relies on you being objective and providing your opinion… Be willing when you come to give evidence to concede ‘that is a good point. I haven’t taken it on board.’”
In another session, consultant orthopaedic surgeon Robert Clayton highlighted the benefits of opposing experts meeting, saying that, on the rare occasions he had done it, discussing cases with the other side via emails had “honed down the bits we agreed on and the bits we disagreed on”.
He suggested the use of video links increased the chances of busy medical experts being able to find the time to meet together remotely.
Duncan Hughes-Phillips, chief executive of Base Quantum, a firm of chartered quantity surveyors, said it was important that, when experts were meeting, solicitors kept out of the discussion and “had confidence” in their quantum experts.
He said: “If you’re doing your job properly, you should clear out all the quantum and distill it down to matters of alternative opinions for the judge that they need to decide [upon]. I think that’s a really important part of what we do.”
Jennifer Jones, a commercial barrister at Atkin Chambers in London, said meetings between experts was the hardest stage of the process “and also the one which is the highest risk but has the greatest chance of gain”. It very much depended on the case and the varied personalities involved.
She had had many cases where the experts had “not been able to agree that the sun rises in the east”. But when it went well – and this often happened – “the [resulting] statement can massively narrow the issues for trial in a way that’s really useful for everyone”.
The keynote address was given by Lord Kerr, who is retiring at the end of this month after 11 years on the Supreme Court.
He predicted that the experience of using technology meant that even if the country rid itself of the coronavirus in the future, a “need to be more imaginative in the use of technology” would persist.
This was not just because it saved resources but because it would be “increasingly a feature of desire of younger members of the [legal] profession to conduct their hearings that way.”